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GERBER, J., dissenting: With due respect, I dissent from
the holding of the majority. I agree that the majority’s literal
reading of the phrase, “underlying tax liability”, is one
possible way to interpret that phrase. It is my view, however,
that the phrase “underlying tax liability”, when considered in
the context of section 6330 and specifically in context of
section 6330(c)(2)(B), could also be read to not include a tax
liability that a taxpayer has reported and admitted was owing.
The intent of the statute was to give a taxpayer the right
to challenge the “underlying tax liability * * * if the
[taxpayer] * * * did not otherwise have an opportunity to
dispute such tax liability.” Sec. 6330(c)(2)(B)(emphasis added).
That phrase should not be interpreted to mean that a person could
contest their own judgment as to the correct tax. The
opportunity to contest tax liabilities is, without exception,
granted by statute.1 If a person files a tax return and self-
assesses or admits to owing a tax liability, but fails to pay the
admitted liability, the statutory opportunity to contest such
liability has traditionally been through a refund suit.2
1 It is well established that the United States is immune
from suit except where Congress by specific statute has waived
its sovereign immunity. See, e.g., United States v. Sherwood,
312 U.S. 584, 586 (1941).
2 We must distinguish the circumstances we consider from
deficiency proceedings where we have authority to consider
overpayments. See sec. 6512(b). A proceeding under section 6330
(continued...)
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